A. G. S. Railroad v. Planter's Warehouse & Com. Co.

45 So. 82 | Ala. | 1907

Lead Opinion

SIMPSON, J.

— A motion is made by the appellee to dismiss the appeal, on the ground that the transcript was not filed in time. The appeal was taken December 5, 1906, and the transcript was filed on February 12, 1907, being the second day of the week, in which the cases from the Second Division were subject to call ;h this court. Our rule No. 45 (8 South, v) provides ,-n such cases: “Unless the transcript is filed with the clerk of this court by twelve o’clock noon of the first day of the first week during which such case is subject to call in this court, it shall be within the power of this court to tax the appellant with all or any part of the costs of appeal”; and the rule goes on to state that the court may, in its discretion, dismiss the appeal on motion, or may decline to impose all or any of the penalties.

The insistence of appellee is that said rule of this court is in irreconcilable conflict with sections 452 and 472 of the Code of 1896, and that the result is that said rule is void and of no effect, so that, after the time fixed by statute for the filing of the transcript, the appeal is functus officio. Section 452, in so far as it applies to this appeal, provides that: “The transcript must be filed on or before the day to which the appeal is returnable.” Section 472 merely provides that the appeal mud; not be treated as discontinued, “unless the appellee shall duly moye for a discontinuance, after legal cause for discontinuance has occurred.” It will be noticed that, while the statute fixes a day when the transcript must be filed, yet it does not prescribe any penalty, nor state what shall be the result of a failure to file it on the day named.

There can be but two ends to be accomplished by the filing of the transcript within a certain time. One is to enable this court to dispose of its business with dispatch and in an orderly manner, and the other to give to the appellee an opportunity to examine the transcript and prepare his defense. These are matters which properly, address themselves to the discretion of this court, and it was evidently so left by the law-making department of the state, in order that this court might further regulate the matter by it's rules. This court might, without acting in contravention of the statute, have declared by its rules that the result of a failure to file the transcript in lime would be only to entitle the appellee to a continuance of the case to the next call of the docket; but it took the wiser course of reserving to itself to exercise its discretion according to the circumstances of each case, and either tax the party with costs, dismiss the appeal, or make such order as the circumstances seem to-demand. If the appellee shows the court that, by reason of the transcript not being filed at an earlier day, he. has not the requisite time to examine it, the court will see that he is not prejudiced thereby; but, as the case cannot be considered until the week set for the hearing of that division, we do not think the appeal should be-dismissed for not having been filed before.

The cases cited by counsel wherein a chasm had been created by a failure to file the transcript during the term stand upon a different basis. The motion to dismiss the appeal is overruled.

This was an action by appellee against the-appellant for damages for the burning of the plaintiff’s -warehouse and contents, which it is claimed were burned as the result of defendant’s negligence.

The first assignment of error insisted upon by the appellant is that the court erred in overruling the defendant’s demurrer to the first count of the complaint. While the writer of this opinion is disposed to agree with the views expressed by Justice Tyson in his dissenting opinion in the Marbury Lumber Co. Case, yet' this court has adhered to the ruling in that case on the subject of necessary allegations of negligence in a complaint, and under said rulings the demurrer to the first-count was properly overruled. — L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 South. 438, 50 U. R. A. 620; A. G. S. R. R. Co. v. Clark, 136 Ala. 450, 34 South. 917.

■ The demurrer to the second count was also properly overruled. — Authorities supra, and A. G. 8. R. R. Go. v. Taylor, 129 Ala. 238, 29 South. 673; A. G. 8. R. R. Go. v. Johnston, 128 Ala. 283, 29 South. 771. Thus far the court is unanimous.

As to the demurrers to pleas (a), (b), and (c), the majority of the court hold that the demurrers were properly sustained, with which opinion the writer differs, and expresses his views hereafter.

Nothing material to the other pleas is added by the pleas (d) and (e), as the plaintiff was not under any obligation to keep fire hose in the warehouse,- nor could it be held liable for a mistake in judgment as to the best method of extinguishing the fire.

The demurrers to the second and third pleas were properly sustained.

The court also hold that the demurrers to pleas (4) and (5) were properly sustained, as they do not state facts showing what preventive methods the plaintiff had in its power to arrest the progress of the fire.

The judgment of the court is affirm.ed.

Tyson, C. J., and Haralson, Dowdell, Anderson, Denson, and McClellan, JJ., concur.

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Dissenting Opinion

SIMPSON, J.

(dissenting). — As to the demurrers to pleas (a), (b), and (c), the writer differs with the majority of the court, his views being as follows: While the decisions are not harmonious on the question of the duty of a party with regard to his own premises adjoining a railroad, yet, according to the weight of authority, it may he stated as settled that a person owning and occupying land adjoining the railroad is authorized to use his property in any natural and proper Avay, and is not under any obligation to keep it clear of combustible material. — Beach on Contributory Negligence (3d Ed.) §§ 235-239; L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 239, 28 South. 438, 50 L. R. A. 620; 2 Shearman & Redfield on Neg. (4th Ed.) §§ 680-682. This court, said in the Marbury Lumber Case, supra,.: “A plaintiff is not responsible for the mere condition of his premises lying along a railroad, but, in order to he held for contributory negligence, must have done some act or omitted some duty which is the proximate cause of his injury, concurring with the negligence of the company.” —Page 263 of 125 Ala., page 445 of 28 South. But said plea (a) alleges that, while there Avas a covered and inclosed platform for the purpose of storing cotton, this cotton was placed on 30 feet of an uninclosed platform, belonging to the defendant, on its right of Avay, next to its track, Avhich was not kept for storing cotton thereon; that it was not a place reasonably safe for the storage of cotton, but was a place where there was constant danger from sparks, etc., and that plaintiff “negligently failed to remove the same into the inclosed part of said Avarehouse within a reasonable time, and negligently allowed the same to remain on said platform, exposed to danger from ignition by fire from defendant’s locomotive engine,” etc., and the fire was communicated from said cotton to the Avarehouse, etc. “It has been held that the fact that the plaintiff placed his property on the defendant’s right of way with the latter’s consent does not constitute contributory negligence, hut the burning of lumber placed on the property of a railroad company in proximity to their track, without any permission, express or implied, gives the owner no right of action against the company.” — 13 Am. & Eng. Ency. Law (2d Ed.) pp. 487, 488. The Supreme Court of Pennsylvania held that one who built his fence on the.right of-way of a railroad company was guilty of contributory negligence, and could not recover for its being burned.— R. R. Co. v. Yeiser, 8 Penn. 366, 377 (at close of opinion.) In a later case that court held that one who placed his lumber partly on the ground hired for that purpose could not recover for its loss by fire occasioned by the negligence of the defendant. The lumber was placed there partly for drying. The court said: “Their piles-extended partly over the defendant’s right of way, and to' this extent they were trespassers, as there is no evidence showing that defendants assented to or even knew of it.” — Poet v. Railroad Co., 108 Penn. 585, 587. The Supreme Court of Texas, in a case where a party had piled cedar posts on the right of way for shipment, after a sufficient number had been accumulated, held that the party Avas not guilty of contributory negligence, because a custom Avas proved Avhich amounted to acquiescence on the part of the railroad company. — Gulf, C. & S. F. Ry. Co. v. McLean, 74 Tex. 646, 12 S. W. 843; 3 Elliott on Railroads, § 1235. In our oavu court, where the pleas averred that the cotton Avas placed on defendant’s platform Avithin 20 feet of the track, and remained there three weeks, Avithout any averments as to Avhether it was the proper place or otherAvise, the court held the plea demurrable; the court saying: “The plaintiff was not bound to anticipate negligence on the part of defendant. In the absence of notice to him that the engire Avas in fact so constructed, equipped, and operated, as to endanger the cotton, the mere placing and keeping of the cotton on the platform cannot be held, as a matter of law, to have been negligent conduct on his part, or to have been negligent conduct on his part, or to have-been the proximate cause of the loss.” — So. Ry. v. Wilson, 188 Ala. 510, 522, 85 South. 561. It will be noticed that in the case just cited, from aught that appears in the plea, it may be that the platform was the usual, proper, and customary place of putting the cotton, and it is not alleged that it was a place of special danger, while in the case now under consideration it is alleged that it was a place of special danger, that it was not intended to be used in the manner in which it was, and that there was a safe place in which to place the cotton, and that the plaintiff negligently failed to remove it within a reasonable time.

In the light of the cases cited, plea (a) showed a legal defense, and \the demurrer thereto sh,ould have been-overruled.

Plea (m) was also good, and the demurrer thereto should have been overruled. Citations supra.

Plea (c), in addition to the allegations made in the preceding pleas, states also that, prior to the occurrences complained of, fire had been communicated to cotton placed there by passing engines, that plaintiff had knowledge of the same, and had been warned of the danger, and that, notwithstanding said knowledge and said warning, and notwithstanding a high wind was blowing from the direction of the track towards the warehouse, plaintiff placed its cotton in said exposed place, etc. It is not alleged Avhether said previous fires Avere caused by negligence or natural causes, yet, in either event, these allegations bring the plea Avithin the principle laid down in Lilley v. Fletcher, 81 Ala. 234, 237, 1 South. 273, and L. & N. R. R. Co. v. Sullivan Timber Co.. 138 Ala. 379, 394-5, 35 South. 327. The demurrer to said plea (c) should have been overruled.

• Nothing material is added to the foregoing pleas by plea (d), as the plaintiff was not under any obligation to keep fire hose in the warehouse.

Nothing material is added by plea (e), as the plaintiff could not be held liable for a mistake of judgment as to' the best method of extinguishing the fire.